Employees must be afforded the right to cross-examine during disciplinary hearings
By Cedric Kadima
Employers are required to have formal disciplinary procedures at the workplace. Even though the Employment Act of 2007 has not made it explicit that a formal hearing should be conducted during disciplinary procedures, employers may outline rigorous hearings procedures. Still, they should adhere to the minimum statutory standards. Such disciplinary procedures must not only conform to strict procedural fairness guidelines but also are significant.
Cross-examination during disciplinary hearings
The foregoing tolerates the consequence that during disciplinary hearings, where an employer decides to call a witness(es) during the hearing, it is imperative that after their testimony, the employee should be allowed to challenge the testimony. The Employment Act of 2007 does not explicitly prescribe an employee’s right to cross-examine witness evidence to challenge it. Though, commentaries on labor laws indicate that challenge does not necessarily include cross-examining the witness.
The object of cross-examination is twofold: first, to elicit information concerning the facts in issue or relevant to the issue that is favorable to the employee facing disciplinary action; second, to cast doubt upon the accuracy of the evidence given in chief against the employee.
Nonetheless, the uncertainty in cross-examining witnesses during disciplinary hearings is cured by Article 47 of the Constitution of Kenya, 2010, the right to fair administrative action. This requires administrative action or quasi-judicial proceedings to be procedurally fair, among other irreducible requirements. The Article is mirrored in the Fair Administrative Action Act. In particular, Section 4(3)(f) & (4)(c) of the Act is explicit on how administrative action is to be undertaken; they mainly include common-law rules and principles of natural justice. Among them, a person has to be notified of their right to cross-examine a witness where adverse evidence is given against them.
Precedence on cross-examination
In Nkatha Joy Faridah Mbaabu v Kenyatta University  eKLR, the Petitioner alleged that she was denied proper procedure during disciplinary hearings when she was not informed of the right to cross-examine invigilators who had given adverse information against her. Though the Respondent contended that the Petitioner did not have a right to cross-examine the witnesses and that, in any event, the Petitioner did not specifically seek to cross-examine the witnesses, Onguto J disagreed with the Respondent.
He reasoned that an adversarial administrative action could not be deemed procedurally fair if the parties were not in a position to adduce and challenge evidence; this is fulfilled by calling witnesses and through cross-examination. He tabled an analysis that the right to cross-examine is now a mandatory right under Section 4(3) of the Fair Administrative Act. Previously, this was not the case. It depended on each case’s circumstances and each forum’s peculiarity. Nonetheless, the application of Article 47 of the Constitution demands that one be accorded the right to cross-examine even in the absence of express statutory provisions. This decision has not been challenged.
Moreover, in Joseph Kairu Mutahi v British Army Training Unit Kenya  eKLR, the Claimant filed a claim at the Employment and Labour Relations Court because he was unfairly dismissed from employment, as he was not accorded a fair hearing. His contention on fair hearing was that he wasn’t given a right to cross-examine his accusers. The Respondent affirmed that the Claimant was not entitled to cross-examine witnesses in disciplinary proceedings under employment law. However, the Court took a divergent view from that of the Respondent. The Court opined that because the allegations were based on oral evidence against the Claimant, he needed to cross-examine the complainants. It found the Respondents culpable for want of due process entailing cross-examination of witnesses or complainants.
The Court of Appeal also pronounced itself on cross-examining witnesses in Civil Appeal No. 263 of 2019, Judicial Service Commission (J.S.C.) vs. Beatrice Nyambune Mosiria, when it upheld the determination of the High Court. The High Court had quashed the decision of J.S.C. as the Claimant (now Respondent) was not accorded the right to cross-examine an auditor who had given oral evidence that was adverse to the Claimant. The Court of Appeal found merit in the determination of the High Court for the reason that failure to accord Respondent with the right to cross-examine the auditor was a grave breach of procedural fairness. Submissions by the Appellant that the Respondent weighed the right to cross-examine the witness when she admitted the charge during the disciplinary hearings did not convince the High Court and the Court of Appeal.
Borrowing a leaf from foreign jurisdictions, in Isabel Gadama & Patricia Chipangula vs. Opportunity Bank of Malawi, Matter Number I.R.C. 36 of 2013, the Malawian Industrial Court was called to decide on the right to cross-examine during disciplinary hearings. The Court relied on natural justice principles in making its determination. It held that a fundamental principle of natural justice is that where a duty to act fairly demands an oral hearing, the right to cross-examine one’s accusations exists.
How to cross-examine
Cross-examination can be said to involve putting forth questions to a witness brought by the opposing side or interrogation of a witness called by an opposing witness.
A proper approach will be that before one cross-examines a witness, they assess whether the evidence provided by the adverse witness is disadvantageous to one’s case. If it is not damaging, there is no need to conduct a cross-examination. However, you can cross-examine to challenge their evidence as irreconcilable, implausible, or illogical. This can result from a document produced by the adverse witness or oral testimony. Here are some pointers:
One, you must have an objective in mind before you begin cross-examining an adverse witness. An example would be to point out inconsistencies in the evidence or show that the negative treatment is untruthful. Second, ask leading questions; these are questions that suggest an answer and, most likely, a yes or no answer. This will enable you to control the questioning and extract the necessary information, for example, that you were absent from work on the material date.
Three, let your questions be concise and clear. Four, each question should be a singular fact question, not multiple facts in one sentence. An example of a multiple fact question that should be avoided is how could you write a letter on a given date when you were absent from work – being absent and writing a termination letter are two facts in one question.
Six, cross-examine facts, not opinions. Opinions are pliant and differ from person to person. Facts are not and do not. For example, you should not ask witnesses if they thought an item was “heavy.” Instead, you should ask questions that show the witness knew it was heavy. Five, once you achieve your objective, stop. Last but not least, maintain calm at all times.
Please note that the above-recommended modes of conducting a cross-examination are not exhaustive. Further, the procedure before Courts is stricter as it follows coded rules in addition to the ones provided above.
From the foregoing, it is almost improbable to challenge an employee’s right to cross-examination during disciplinary hearings. Employees should note that cross-examination of witnesses might influence the outcome of a disciplinary hearing. This is because cross-examination tests the credibility of evidence given against them in a hearing, and the evidence of a witness exposes weaknesses where they exist. It undermines the witness’s account, testing the accuracy, veracity, or credibility of the evidence or discrediting the evidence or character of the witness. Therefore, employees should not forfeit their right to cross-examine a witness in a disciplinary hearing unless necessary.
Consequently, employers must give notice to an employee facing disciplinary action of their right to cross-examine; and accord the employee during hearing an opportunity to cross-examine a witness where adverse evidence is given. (